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Photograph of a child asylum seeker in the Rixensart asylum seeker centre in Belgium

Facts

On 11 October 2010 the Saciri family applied for asylum in Belgium. The family consists of father Selver, mother Danijela and their three children, Danjel, Denis and Sanela. At the same time as claiming asylum, the family applied for accommodation to the Belgian agency for asylum seeker reception (Fedasil). Fedasil informed the Saciri family that it did not have any available accommodation and referred it to obtain a financial allowance from the Belgian public centre for social welfare (OCMW). OCMW refused to provide the family with a financial allowance on the grounds that the family was not staying at Fedasil’s asylum reception centre. As a consequence, the family was denied both public asylum seeker accommodation and a financial allowance to rent in the private market.

The family commenced proceedings in the Leuven local labour court (Local Court). On 12 January 2011 the Local Court ordered Fedasil to provide the family with public accommodation. On 21 January 2011 Fedasil finally placed the family in public asylum seeker accommodation. By this time the family had spent more than three months, from the date of claiming asylum, without public accommodation or a sufficient financial allowance to rent privately. On 17 October 2011, the Local Court ordered Fedasil to pay the Saciri family EUR 2,961, representing three months of minimum guaranteed income. Fedasil appealed the judgment to the Brussels higher labour court (Higher Court).

Preliminary Reference

The Higher Labour Court referred three questions to the Court of Justice as preliminary references. The questions were:

When a member state chooses to provide a financial allowance instead of accommodation is it bound by the requirements of articles 13 and 14 of Directive 2003/9/EC of 27 January 2003 (Directive)? In particular, should the financial allowance be sufficient to allow an asylum seeker to provide their own accommodation at all times?

From when does the financial allowance need to be paid?

Does the member state have to ensure compliance with the Directive when its asylum accommodation is full and it refers asylum seekers to other public agencies?

The Law

The Directive lays down minimum standards for the reception of asylum seekers. Recital 5 of the Directive stresses that full respect for human dignity as enshrined in the Charter of Fundamental Rights (Charter) should be ensured. Recital 7 states that the Directive should normally ensure asylum seekers a dignified standard of living and that comparable living conditions should be provided in member states.

Article 13 of the Directive requires member states to ensure:

that material reception conditions are available to applicants when they make their application for asylum (article 13(1)); and

a standard of living adequate for the health of applicants and capable of ensuring their subsistence. (article 13(2)).

Article 13(5) of the Directive states that:

“…where Member States provide material reception conditions in the form of financial allowances….the amount thereof shall be determined in accordance with the principles set out in this Article.”

Article 14 of the Directive imposes various conditions on member states when they provide accommodation to asylum seekers. This includes ensuring that minors are lodged with their parents (article 14(3)).

Belgium has transposed the Directive into its domestic law.

Court of Justice

On 27 February 2014 the Court of Justice delivered its judgment. The Court emphasised that the Higher Court’s questions needed to be answered in accordance with the spirit of the Directive, and, notably, article 1 of the Charter which enshrines respect for human dignity.

On the first question, the Court said that where a member state chooses to provide a financial allowance instead of asylum accommodation, then such a financial allowance needs to comply with articles 13(1) and 13(2) of the Directive. This requires the financial allowance to be:

“sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence by enabling them to obtain housing, if necessary, on the private rental market.” [paragraph 42]

However, the Court stressed that the Directive:

“cannot be interpreted as meaning that it is appropriate to leave the asylum seekers to make their own choice of housing suitable for themselves”. [paragraph 43]

The Court said that the requirements of article 14 of the Directive did not apply to the provision of financial allowance. However, the Court went on to state that:

“nevertheless, the amount of those allowances must be sufficient to enable minor children to be housed with their parents, so that the family unity of the asylum seekers may be maintained.” [paragraph 46]

On the second question, the Court said that in accordance with its case law, Cimade and GISTI, C‑179/11, article 13(5) of the Directive required the financial allowance to be provided from the date of the asylum application.

On the third question, the Court said that where a member state’s asylum accommodation is full, that the asylum seekers could be referred to other public agencies, but that the minimum standards of the Directive needed to be met.

Comment

The Court’s judgment should be praised for upholding asylum seekers’ rights to suitable housing in member states. Importantly, the Court stresses that the financial allowance needs to be sufficient to provide asylum seekers with dignity, which includes, if necessary, renting in the private market. This means that member states will not be able to escape their obligations under the Directive just because their asylum seeker accommodation is full. This is important as a recent survey (which did not unfortunately include Belgium) from the European Council of Refugees and Exiles showed that there was a tremendous undersupply of asylum seeker accommodation in member states. The clarification that the financial allowance has to be paid from the asylum application is also to be welcomed.

It is also very interesting that despite the Court finding that article 14(3) of the Directive, which requires that minors should be housed with their parents, did not apply to the financial allowance, that nevertheless the financial allowance should allow minors to be housed with their parents. This is yet recognition of the asylum seekers’ right to dignity, which is enshrined in the Charter and the Directive.

Developments

On 26 June 2013, Directive 2013/33/EU which lays down new standards for the reception of asylum seekers (2013 Directive) was passed. This seeks greater harmonisation of member states’ minimum reception conditions. Member states have until 20 July 2015 to transpose the 2013 Directive.

The 2013 Directive has been significantly weakened from its original ambitious proposals. For instance, article 13 of the proposed Directive 52008PC0815 stated:

“Member States shall ensure that the total value of material reception conditions to be made available to asylum seekers is equivalent to the amount of social assistance granted to nationals...”

However, following passionate debates in the European Parliament about whether the financial allowance had to be the same as social assistance offered to nationals, this provision was removed. Article 17(5) of the 2013 Directive now states that:

“Member States may grant less favourable treatment to applicants compared with nationals.”

In light of such explicit legislation, the Court’s robust upholding of asylum seekers rights’ is to be praised. It remains to be seen what impact the Charter will have on the Court’s interpretation of asylum seekers’ accommodation rights.